New York ex rel. Bryant v. Zimmerman/Opinion of the Court

The relator, Bryant, who was held in custody to answer a charge of violating a statute of New York, brought a proceeding in habeas corpus in a court of that state to obtain his discharge on the ground, as was stated in the petition, that the warrant under which he was arrested and detained was issued without any jurisdiction, in that the statute which he was charged with violating was unconstitutional.

The court sustained the validity of the statute and refused to discharge him, People ex rel. Bryant v. Sheriff of Erie County, 123 Misc. Rep. 859, 206 N. Y. S. 533; and that judgment was affirmed by the Appellate Division, 213 App. Div. 414, 210 N. Y. S. 269; and by the Court of Appeals, 241 N. Y. 405, 150 N. E. 497, 43 A. L. R. 909. He them sued out the present writ of error under section 237(a) of the Judicial Code (28 USCA § 344)-his assignment of errors presented in obtaining the writ being to the effect that the Court of Appeals erroneously had held the statute valid against a contention made by him that it was invalid, because repugnant to so much of the Fourteenth Amendment to the Constitution of the United States as declares:

'No state shall make or enforce any law which shall abridge     the privileges or immunities of citizens of the United      States; nor shall any state deprive any person of life,      liberty, or property, without due process of law; nor deny to      any person within its jurisdiction the equal protection of      the laws.' The material parts of the state statute (article 5-A, Civil Rights Law; Laws 1923, p. 1110, c. 664), are as follows:

'Sec. 53. Every existing membership corporation, and every     existing unincorporated association having a membership of      twenty or more persons, which corporation or association      requires an oath as a prerequisite or condition of      membership, other than a labor union or a benevolent order      mentioned in the benevolent orders law, within thirty days      after this article takes effect, and every such corporation      or association hereafter organized, within ten days after the      adoption thereof, shall file with the secretary of state a      sworn copy of its constitution, by-laws, rules, regulations      and oath of membership, together with a roster of its      membership and a list of its officers for the current year. *     *  * '

'Sec. 56. * *  * Any person who becomes a member of any such      corporation or association, or remains a member thereof, or      attends a meeting thereof, with knowledge that such      corporation or association has failed to comply with any      provision of this article, shall be guilty of a misdemeanor.'

Both parties treat the case as rightly here and as presenting the question whether the state statute is repugnant to the provisions before quoted from the Fourteenth Amendment. But as consent or acquiescence of the parties does not suffice to establish our appellate jurisdiction, and some of our number have doubted the existence of such jurisdiction in this case, we now take up the question.

Section 237a of the Judicial Code (section 344, title 28, U.S.C.ode) provides that this court may review upon writ of error 'a final judgment or decree in any suit' in the court of last resort of a state 'where is drawn, in question the validity of a statute of any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity.' It is under this provision that a review is invoked.

There are various ways in which the validity of a state statute may be drawn in question on the ground that it is repugnant to the Constitution of the United States. No particular form of words or phrases is essential, but only that the claim of invalidity and the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented.

Of course the decision must have been against the claim of invalidity, but it is not necessary that the ruling shall have been put in direct terms. If the necessary effect of the judgment has been to deny the claim, that is enough.

With these general rules in mind we turn to what is shown in this case. The petition for habeas corpus, while asserting that the state statute was 'unconstitutional,' contained no mention of any constitutional provision, state or federal. The opinion delivered by the court of first instance was similarly indefinite. Up to that point it is left uncertain whether the claim of invalidity was grounded on some provision of the state Constitution, or on some provision of the Constitution of the United States, or on both. If this were all, there plainly would be no basis for a review in this court. But more appears. The relator took an appeal to the Appellate Division. The appeal was not accompanied by an assignment of errors, but this was not an omission. The local practice does not recognize an assignment of errors as known in other jurisdictions; it merely requires the appellant to set forth in a printed brief 'the points to be relied on by him.' In the opinion delivered, which for present purposes is deemed part of the record, the Appellate Division stated distinctly that the relator's claim of invalidity was grounded on asserted repugnance to both the due process of law clause of the state Constitution and the clauses hereinbefore quoted from the Fourteenth Amendment. After so stating the claim the court considered it at length and denied it. From that decision the relator appealed to the Court of Appeals. Again the appeal was not accompanied by an assignment of errors, and for the same reason as before. See rule 7, Court of Appeals Rules. The appeal was entertained and the decision of the Appellate Division was affirmed. The Court of Appeals in its opinion does not mention the Constitution of the state or the Fourteenth Amendment, but does state that the relator was asserting the 'unconstitutionality' of the statute on the ground that it deprived him of his liberty without due process of law and denied him the equal protection of the laws, etc. Nothing in the opinion is at all indicative of an abandonment by the relator of his reliance on the Fourteenth Amendment which was so distinctly stated in the opinion of the Appellate Division. On the contrary, the court's discussion of the case and its citation of authorities proceed as if it were considering the identical claim of invalidity that was presented in the Appellate Division and there denied. Among the citations are several decisions of this court dealing only with the clauses before quoted from the Fourteenth Amendment. Indeed, the opinion shows that in upholding the statute against the contention that it denies the equal protection of the laws the Court of Appeals practically rested its decision 'on the authority' of Radice v. New York, 264 U.S. 292, 296, 297, 44 S.C.t. 325, 68 L. Ed. 690. where another statute of New York assailed as in conflict with the equal protection clause of that amendment was sustained.

From this showing in the record, coupled with the absence from the state Constitution of an equal protection of the laws clause, we think it apparent that the claim of invalidity by reason of the statute's repugnance to the Fourteenth Amendment was presented to the Court of Appeals and that by its decision the statute was upheld against that claim.

Upon looking at that decision as published in the official reports (241 N. Y. 405, 150 N. E. 497, 43 A. L. R. 909), we find it stated by the reporter in his accompanying synopsis of the briefs that the brief on behalf of the relator embodied the specific claim that the statute was invalid because in conflict with the equal protection and other provisions of the Fourteenth Amendment. But, as we otherwise reach the conclusion that the claim was adequately made, there is no need to notice what is said in the reporter's synopsis beyond observing that it probably points to the reason why both parties, and the Chief Judge who allowed the writ of error, treated the case as one in which the question of the validity of the statute under the Constitution of the United States had been properly presented.

Our jurisdiction to review the decision is questioned also because of the nature of the case, it being a proceeding in habeas corpus brought to obtain the discharge of one who is held in custody to answer a charge of violating a state statute alleged to be invalid by reason of its conflict with the Constitution of the United States. But we think our jurisdiction is in this regard so well established by prior decisions and long-continued practice that it is not debatable.

In the early case of Holmes v. Jennison, 14 Pet. 540, 563, 568, 597, 614, 10 L. Ed. 579, this court held after must consideration that a proceeding in habeas corpus in a state court to obtain the release of one held in custody upon a criminal charge, where the detention is alleged to be in violation of the Constitution of the United States, is a 'suit' within the meaning of the jurisdictional statute, and that an order of the state court of last resort refusing to discharge him is a final judgment in that suit and subject to review by this court. That holding has been respected and given effect in an unbroken line of later decisions, all of which in their material facts and surroundings were like the case now before us. It also has been followed in other cases related in principle.

The proceeding before us was not brought in antagonism to the established practice in the state, but in entire keeping with that practice as confirmed by local statutes. Civil Practice Act, art. 77, §§ 1230-1235, 1251. This was recognized in the decisions given by the courts of the state. And the proceeding was independent, adversary and both adapted and directed to the enforcement of a most important personal right. It is quite unlike the fragmentary or branch proceeding considered in Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 256, 37 S.C.t. 295, 61 L. Ed. 702; the judgment in which was held to be interlocutory only, and not final in the sense of the jurisdictional statute.

We are accordingly of opinion that the case and the judgment therein are of such a nature that we have jurisdiction to review the latter.

The offense charged against the relator is that he attended meetings and remained a member of the Buffalo Provisional Klan of the Knights of the Ku Klux Klan, an unincorporated association-but neither a labor union nor a benevolent order mentioned in the benevolent orders law-having a membership of more than 20 persons and requiring an oath as a prerequisite or condition of membership, he then having knowledge that such association had wholly failed to comply with the requirement in section 53.

There are various privileges and immunities which under our dual system of government belong to citizens of the United States solely by reason of such citizenship. It is against their abridgement by state laws that the privilege and immunity clause in the Fourteenth Amendment is directed. But no such privilege or immunity is in question here. If to be and remain a member of a secret, oath-bound association within a state be a privilege arising out of citizenship at all, it is an incident of state rather than United States citizenship; and such protection as is thrown about it by the Constitution is in no wise affected by its possessor being a citizen of the United States. Thus there is no basis here for invoking the privilege and immunity clause.

The relator's contention under the due process clause is that the statute deprives him of liberty in that it prevents him from exercising his right of membership in the association. But his liberty in this regard, like most other personal rights, must yield to the rightful exertion of the police power. There can be no doubt that under that power the state may prescribe and apply to associations having an oath-bound membership any reasonable regulation calculated to confine their purposes and activities within limits which are consistent with the rights of others and the public welfare. The requirement in section 53 that each association shall file with the secretary of state a sworn copy of its constitution, oath of membership, etc., with a list of members and officers is such a regulation. It proceeds on the two-fold theory that the state within whose territory and under whose protection the association exists is entitled to be informed of its nature and purpose, of whom it is composed and by whom its activities are conducted, and that requiring this information to be supplied for the public files will operate as an effective or substantial deterrent from the violations of public and private right to which the association might be tempted if such a disclosure were not required. The requirement is not arbitrary or oppressive, but reasonable and likely to be of real effect. Of course, power to require the disclosure includes authority to prevent individual members of an association which has failed to comply from attending meetings or retaining membership with knowledge of its default. We conclude that the due process clause is not violated.

The main contention made under the equal protection clause is that the statute discriminates against the Knights of the Ku Klux Klan and other associations in that it excepts from its requirements several associations having oath-bound membership, such as labor unions, the Masonic fraternity, the Independent Order of Odd Fellows, the Grand Army of the Republic, and the Knights of Columbus-all named in another statute, which provides for their incorporation and requires the names of their officers as elected from time to time to be reported to the secretary of state.

The principle to be applied in determining whether a particular discrimination or classification offends against the equal protection clause is shown in the following excerpts from some of our decisions:

Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S.C.t. 281,     282 (58 L. Ed. 539)-'The discrimination undoubtedly presents      a more difficult question. But we start with the general     consideration that a state may classify with reference to the      evil to be prevented, and that if the class discriminated      against is or reasonably might be considered to define those      from whom the evil mainly to be feared, it properly may be      picked out. A lack of abstract symmetry does not matter. The     question is a practical one, dependent upon experience. The     demand for symmetry ignores the specific difference that      experience is supposed to have shown to mark the class. It is     not enough to invalidate the law that others may do the same      thing and go unpunished, if, as a matter of fact, it is found      that the danger is characteristic of the class named. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 80, 81     (31 S.C.t. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160). The     state 'may direct its law against what it deems the evil as      it actually exists without covering the whole filed of      possible abuses.' Central Lumber Co. v. South Dakota, 226 U.      S. 157, 160 (33 S.C.t. 66, 67 (57 L. Ed. 164)).' Miller v. Wilson, 236 U.S. 373, 383, 35 S.C.t. 342, 344 (59     L. Ed. 628, L. R. A. 1915F, 829)-'The contention as to the      various omissions which are noted in the objections here      urged ignores the well-established principle that the      Legislature is not bound, in order to support the      constitutional validity of its regulation, to extend it to      all cases which it might possibly reach. Dealing with     practical exigencies, the Legislature may be guided by      experience. Patsone v. Pennsylvania, 232 U.S. 138, 144 (34     S.C.t. 281, 58 L. Ed. 539). It is free to recognize degrees     of harm, and it may confine its restrictions to those classes      of cases where the need is deemed to be clearest.'

Radice v. New York, 264 U.S. 292, 296, 44 S.C.t. 325, 327     (68 L. Ed. 690)-' Such classification must not be 'purely      arbitrary, oppressive or capricious.' American Sugar Refining      Co. v. Louisiana, 179 U.S. 89, 92 (21 S.C.t. 43, 45 L. Ed.      102). But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some     degree. The inequality produced, in order to encounter the     challenge of the Constitution, must be 'actually and palpably      unreasonable and arbitrary.' Arkansas Natural Gas Co. v.      Railroad Commission, 261 U.S. 379, 384 (43 S.C.t. 387, 389      67 L. Ed. 705), and cases cited. Thus classifications have     been sustained which are based upon differences between fire      insurance and other kinds of insurance. Orient Insurance Co. v. Daggs, 172 U.S. 557, 562 (19 S.C.t. 281, 43 L. Ed. 552);     between railroads and other corporations, Tullis v. Lake Erie      & Western R. R. Co., 175 U.S. 348, 351 (20 S.C.t. 136, 44 L.      Ed. 192); between barber shop employment and other kinds of      labor, Petit v. Minnesota, 177 U.S. 164, 168 (20 S.C.t. 666,      44 L. Ed. 716); between 'immigrant agents' engaged in hiring      laborers to be employed beyond the limits of a state and      persons engaged in the business of hiring for labor within      the state, Williams v. Fears, 179 U.S. 270, 275 (21 S.C.t.      128, 45 L. Ed. 186); between sugar refiners who produce the      sugar and those who purchase it, American Sugar Refining Co.      v. Louisiana, supra.'

Quaker City Cab Co. v. Pennsylvania (decided May 28, 1928)     277 U.S. 389, 48 S.C.t. 553, 72 L. Ed. 927-'The equal     protection clause does not detract from the right of the state justly to exert its taxing power or      prevent it from adjusting its legislation to differences in      situation or forbid classification in that connection, 'but      it does require that the classification be not arbitrary, bus      based on a real and substantial difference having a      reasonable relation to the subject of the particular      legislation.' Power Co. v. Saunders, 274 U.S. 490, 493 (47      S.C.t. 678, 71 L. Ed. 1165).'

The courts below recognized the principle shown in the cases just cited and reached the conclusion that the classification was justified by a difference between the two classes of associations shown by experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make the secrecy surrounding its purposes and membership a cloak for acts and conduct inimical to personal rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In pointing out this difference one of the courts (123 Misc. Rep. 859, 206 N. Y. S. 533) said of the Ku Klux Klan, the principal association in the included class:

'It is a matter of common knowledge that this organization     functions largely at night, its members disguised by hoods      and gowns and doing things calculated to strike terror into      the minds of the people,'

-and later said of the other class:

'These organizations and their purposes are well known, many     of them having been in existence for many years. Many of them     are oath-bound and secret. But we hear of no complaints     against them regarding violation of the peace or interfering      with the rights of others.'

Another of the courts (213 App. Div. 414, 210 N. Y. S. 269) said:

'It is a matter of common knowledge that the association or     organization of which relator is concedely a member exercise      activities tending to the prejudice and intimidation of      sundry classes of our citizens. But the legislation is not     confined to this society,'

-and later said of the other class:

'Labor unions have a recognized lawful purpose. The     benevolent orders mentioned in the Benevolent Orders Law have      already received legislative scrutiny and been granted special privileges so that the legislature may well      consider them beneficent rather than harmful agencies.'

The third court (241 N. Y. 405, 150 N. E. 497, 43 A. L. R. 909), after recognizing 'the potentialities of evil in secret societies' and observing that 'the danger of certain organizations has been judicially demonstrated'-meaning in that state-said:

'Benevolent orders, labor, unions and college fraternities     have existed for many years, and, while not immune from      hostile criticism, have on the whole justified their      existence.'

We assume that the Legislature had before it such information as was readily available, including the published report of a hearing before a committee of the House of Representatives of the Fifty-Seventh Congress relating to the formation, purposes, and activities of the Ku Klux Klan. If so it was advised-putting aside controverted evidence-that the order was a revival of the Ku Klux Klan of an earlier time, with additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its membership was limited to native-born, gentile, protestant whites; that in part of its constitution and printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the United States, in another exacted of its members an oath to shield and preserve 'white supremacy,' and in still another declared any person actively opposing its principles to be 'a dangerous ingredient in the body politic of our country and an enemy to the weal of our national commonwealth'; that it was conducting a crusade against Catholics, Jews, and negroes, and stimulating hurtful religious and race prejudices; that it was striving for political power, and assuming a sort of guardianship over the administration of local, state, and national affairs; and that at times it was taking into its own hands the punishment of what some of its members conceived to be crimes.

We think it plain that the action of the courts below in holding that there was a real and substantial basis for the distinction made between the two sets of associations or orders was right and should not be disturbed.

Criticism is made of the classification on the further ground that the regulation is confined to associations having a membership of 20 or more persons. Classification based on numbers is not necessarily unreasonable. There are many instances in which it has been sustained. We think it not unreasonable in this instance. With good reason the Legislature may have thought that an association of less than 20 persons would have only a negligible influence, and be without the capacity for harm that would make regulation needful.

We conclude that all the objections urged against the statute are untenable as held by the courts below.

Judgment affirmed.

Separate opinion of Mr. Justice McREYNOLDS.

For two reasons, I think we have no jurisdiction of this writ of error and that it should be dismissed.

The cause was finally determined by the Court of Appeals of New York January 12, 1926. The record fails to disclose that any federal question was presented to or considered by that court. Moreover, the real controversy between the parties involves no substantial federal question.

The petition for habeas corpus-presented to the Supreme Court-affirmed that plaintiff in error was confined in the Buffalo jail under pretense that he had 'violated chapter 664 of the Laws of 1923, which law is commonly known as the Walker Law, and which law is sections 53, 54, 55, and 56 of article 5-A of the Civil Rights Law.' These sections are printed below. It then alleged:

'That said imprisonment and restraint is illegal in this, to     wit: That the Magistrate was without jurisdiction to issue      the warrant, or cause his arrest, inasmuch as chapter 664 of      the Laws of 1923, is unconstitutional and void and of no      force or effect.'

And upon that ground alone it sought the petitioner's release. The petition did not refer to the Federal Constitution or any statute of the United States.

The warrant for plaintiff in error's arrest was based upon an information which, in the language of the Court of Appeals, charged:

'That he attended a meeting of and remained a member of     Buffalo Provisional Klan of the Knights of the Ku Klux Klan      with knowledge that said association, which has more than 20 members, requires an oath      as a prerequisite or condition of membership, and is not a      labor union or a benevolent order mentioned in the Benevolent      Orders Law (Consol. Laws, c. 3), had not complied with the      provisions of the statute by filing with the secretary of      state a sworn copy of its constitution, by-laws, rules,      regulations and oath of membership, together with a roster of      its membership and a list of its officers for the current      year.'

The writ of habeas corpus followed the usual form: The record contains no return thereto.

Upon an affidavit that the constitutionality of chapter 664, Act of 1923, had been challenged, the Supreme Court permitted the Attorney General to intervene.

The cause was heard by the Supreme Court upon the petition, information, warrant, writ of habeas corpus, and argument of counsel. No other evidence was introduced. There is nothing to show that the association to which plaintiff in error belonged had any connection whatever with the Ku Klux Klan of the last century; nothing to show its purposes, or the nature of the oath taken by members.

The Supreme Court discharged the writ, but neither its judgment nor the accompanying opinion mentions the Federal Constitution or any statute of the United States. Without supporting evidence, that court said:

'It may be assumed that the Legislature informed itself of     conditions bearing upon the proposed legislation. These     conditions probably are not such as would enable the court to      take judicial notice of them, but the Legislature could well      have learned of the acts of the Klan. It is a matter of     common knowledge that this organization functions largely at      night, its members disguised by hoods and gowns and doing      things calculated to strike terror into the minds of the      people. It is claimed that they are organized against certain     of the citizens by reason of race or religion.'

Thereupon the cause was appealed to the Appellate Division, without any assignment of errors, and that court affirmed the order discharging the writ. The opinion there contains the following language:

'The facts are not in dispute. Relator sued out a writ of     habeas corpus upon the theory that the statute in question is      unconstitutional and that is the only question to be      determined. * *  *

'Relator complains that the exemption in said statute of     labor unions and the benevolent orders mentioned in the      Benevolent Orders Law is an unlawful classification in      violation of section 6 of article 1 of the Constitution of the state of New York, which provides among other things that      no person shall be deprived of life, liberty or property      without due process or law, and of section 1 of the      Fourteenth Amendment of the Federal Constitution, which      provides that no state shall make or enforce any law which      shall abridge the privileges or immunities of citizens of the      United States, and that no state shall deprive any person of      life, liberty or property without due process of law, and      that no state shall deny to any person within its      jurisdiction the equal protection of the laws. * *  *

'It is a matter of common knowledge that the association or     organization of which relator is concededly a member      exercises activities tending to the prejudice and      intimidation of sundry classes of our citizens. * *  * '

The foregoing is the only direct reference to Federal Constitutional or laws disclosed by the record.

Finally, the cause went by appeal and without assignment of error of the Court of Appeals of New York. That court affirmed the order of the Appellate Division and delivered a supporting opinion, which does not mention the Federal Constitution, or any statute of the United States. Certainly it cannot be said that the record affirmatively discloses that any federal question was raised or considered in the Court of Appeals.

In Crowell v. Randell (1836) 10 Pet. 368, 392, 9 L. Ed. 458, upon motion to dismiss the writ of error to the Supreme Court of Delaware for want of jurisdiction, Mr. Justice Story, in behalf of the court, said:

'In the interpretation of this section (25) of the act of     1789 (1 Stat. 85), it has been uniformly held, that to give      this court appellate jurisdiction, two things should have      occurred and be apparent in the record: First, that some one      of the questions stated in the section did arise in the court      below; and, secondly, that a decision was actually made      thereon, by the same court, in the manner required by the section. If both of these do not appear on the record,     the appellate jurisdiction fails. It is not sufficient to     show, that such a question might have occurred, or such a      decision might have been made, in the court below. It must be     demonstrable, that they did exist, and were made. The     principal, perhaps the only important, difficulty which has      even been felt by the court, has been in ascertaining in      particular cases, whether these matters (the question and      decision) were apparent on the record. And here the doctrine     of the court has been, that it is not indispensable, that it      should appear on the record, in totidem verbis, or by direct      and positive statement, that the question was made and the      decision given by the court below on the very point; but that      it is sufficient, if it be clear, from the facts stated, by      just and necessary inference, that the question was made, and      that the court below must, in order to have arrived at the      judgment pronounced by it, have come to the very decision of      that question as indispensable to that judgment.'

The language of the Act of February 13, 1925 (28 USCA § 344), and of the Judiciary Act of 1789 (1 Stat. 85, § 25), presently important, is substantially the same.

In Michigan Sugar Co. v. Michigan, 185 U.S. 112, 113, 22 S.C.t. 581 (46 L. Ed. 829), by Chief Justice Fuller, this court said:

'The Supreme Court of the state did not refer to the Federal     Constitution or consider and decide any federal question. For     aught that appears, the court proceeded in its determination      of the cause without any thought that it was disposing of      such a question.

'The rule is firmly established, and has been frequently     reiterated, that the jurisdiction of this court to re-examine      the final judgment of a state court, under the third division      of section 709 (Rev. St.), cannot arise from mere inference,      but only from averments so distinct and positive as to place it beyond question that the party bringing the case here from      such court intended to assert a federal right. The statutory     requirement is not met unless the party unmistakably declares      that he invokes for the protection of his rights, the      Constitution, or some treaty, statute, commission or      authority, of the United States. Applying this rule to the     case before us, the writ of error cannot be maintained.'

In Whitney v. California, 274 U.S. 357, 360, 47 S.C.t. 641, 643 (71 L. Ed. 1095), we held-

'It has long been settled that this court acquires no     jurisdiction to review the judgment of a state court of last      resort on a writ of error, unless it affirmatively appears on      the face of the record that a federal question constituting      an appropriate ground for such review was presented in and      expressly or necessarily decided by such state court.'

Crowell v. Randell, 10 Pet. 368, 392, 9 L. Ed. 458; Mississippi & M. Railroad Co. v. Rock, 4 Wall. 177, 180, 18 L. Ed. 381; California Powder Works v. Davis, 151 U.S. 389, 393, 14 S.C.t. 350, 38 L. Ed. 206; Cincinnati, etc., railway v. Slade, 216 U.S. 78, 83, 30 S.C.t. 230, 54 L. Ed. 390; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.S. 341, 343, 40 S.C.t. 330, 64 L. Ed. 601; New York v. Kleinert, 268 U.S. 646, 650, 45 S.C.t. 618, 69 L. Ed. 1135-Were cited. See, also, Mellon v. O'Neil, 274 U.S. 212, 214, 48 S.C.t. 62, 72 L. Ed. 245; Dewey v. Des Moines, 173 U.S. 193, 199, 19 S.C.t. 379, 43 L. Ed. 665; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.S. 626, 634, 20 S.C.t. 205, 44 L. Ed. 299.

It is not enough that the opinion of the Appellate Division referred to the Constitution of the United States. To give us jurisdiction the record must show affirmatively that the federal question was before the Court of Appeals. Mere inference will not do. This rule has been rigidly enforced for a hundred years.

The function of a writ of habeas corpus is to test the validity of challenged imprisonment-not the guilt or innocence of the prisoner. And over and over again this court has asserted that it will not permit habeas corpus to perform the office of a writ of error.

It must now be accepted as settled doctrine in this court that one is not deprived of any federal right merely by being put on trial for violating a state statute which conflicts with the Federal Constitution. Nor is one deprived of his federal right solely because he may be imprisoned after conviction of violating a state statute admittedly in conflict with the Federal Constitution.

It follows that when the petition for habeas corpus alleged that plaintiff in error was imprisoned under a charge of violating a state statute said to be unconstitutional and void, no real federal question was raised. The legality of his imprisonment did not depend at all upon the validity of the act which it was said he had violated. His right was to an orderly hearing upon the charge, with the privilege of ultimate review here. And as the habeas corpus proceeding never involved any substantial question arising under the Constitution or laws of the United States, we have no jurisdiction to review it.

Undoubtedly, cases like this have been entertained here in the past. But, since it has become settled law that mere imprisonment and trial under a charge based upon an unconstitutional state statute does not deprive one of his liberty without due process of law, we should deny further jurisdiction. There is no longer any controverted federal question essential to decision of the cause.

This view is aided by consideration of the serious and manifest evil which will follow a different course. Certainly, we should not undertake to determine the validity of a state statute in advance of trial upon the merits simply because some prisoner sees fit to sue out a writ of habeas corpus upon the alleged ground of conflict between the statute and Federal Constitution.